01976990
11-02-1998
Linda N. Coats, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Areas) Agency.
Linda N. Coats v. United States Postal Service
01976990
November 2, 1998
Linda N. Coats, )
Appellant, )
) Appeal No. 01976990
v. ) Agency No. 4H-330-0204-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Areas) )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision (FAD) was issued
on August 26, 1997 and received by appellant on September 2, 1997.
The appeal was postmarked September 20, 1997. Accordingly, the appeal
is timely, (See 29 C.F.R. � 1614.402(a)), and is accepted in accordance
with EEOC Order 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant's allegation states a claim
under Title VII.
ANALYSIS AND FINDINGS
The record indicates that on May 21, 1997, appellant filed a formal
EEO complaint alleging that she was discriminated against because
of retaliation (prior EEO activity) when on November 7, 1996, she was
harassed by her supervisor who instructed that she complete her route in
eight (8) hours, which, according to appellant, could not be completed
in eight(8) hours. Appellant states in her complaint that she "want[s]
fair and equal treatment and do[es] not want to be harassed by [her
supervisor]."
The agency dismissed appellant's complaint on the basis that it fails
to state a claim. In accordance with 29 C.F.R. �1614.107(a), the agency
shall dismiss a complaint or a portion of a complaint that fails to state
a claim. The regulations at 29 C.F.R. �1614.103 provide that an agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by the agency due to race, color, religion, sex, national origin, age,
sex-based wage discrimination, disabling condition or retaliation.
An employee is aggrieved when he or she has suffered a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Riden v. Department of Treasury, EEOC Request
No. 05970314 (October 2, 1998) citing Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). Terms, conditions,
or privileges of employment include, inter alia, promotion, demotion,
discipline, reasonable accommodation, appraisals, awards, training,
benefits, assignments, overtime, leave, tours of duty, etc. See Cobb
v. Treasury, EEOC Request No. 05970077 (March 13, 1997).
Appellant's claim of harassment should be accepted only where she has
made factual allegations which, "when considered together and treated as
true, are sufficient to state a claim either of (1) disparate treatment
regarding hiring, termination, compensation, or any other term, condition,
or privilege of employment; or (2)a hostile or abusive work environment."
Riden at p. 3, citing Cobb v. Treasury, EEOC Request No. 05970077 (March
13, 1997). We do not find that appellant's factual allegations state a
claim of disparate treatment. Appellant has not made an allegation nor
is there evidence that the statement made to appellant, requiring her
route to be completed in eight (8) hours, caused appellant to suffer any
measurable monetary loss, changes in her hours, wages, and/or other terms
and conditions of her employment. Accordingly, we find that appellant has
failed to state a claim of disparate treatment regarding a specific term,
condition, or privilege of employment.
In determining whether a harassment complaint states a claim where a
complainant had not alleged disparate treatment regarding a specific
term, condition, or privilege of employment, the Commission has
repeatedly examined whether a complainant's harassment allegations,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. Cobb v. Treasury,
EEOC Request No. 05970077 (March 13, 1997). Harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). An objectively hostile or abusive work environment
is created when a reasonable person would find it hostile or abusive
and the complainant subjectively perceives it as such. Harris, supra
at 21-22; Cobb v. Treasury, EEOC Request No. 05970077 (March 13, 1997).
The Commission has repeatedly found that allegations of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See e.g. Miller v. United States Postal Service,
EEOC Request No. 05941016 (June 2, 1995)(an oral admonishment was
not sufficient to state a hostile work environment claim); Phillips
v. Department of Veteran Affairs, EEOC Request No. 05960030 (July 12,
1996) (allegations that supervisor had "verbally attacked" the complainant
on one occasion, attempted to charge him with AWOL, and disagreed with
the time the complainant entered into a sign-in log, were insufficient to
state a harassment claim); Backo v. USPS, EEOC Request No. 05960227 (June
10, 1996)(supervisor's remarks on several occasions, unaccompanied by any
concrete action, were not sufficient to state a claim); Henry v. USPS,
EEOC Request No. 05940695 (February 9, 1995)(an allegation that, on one
occasion, a supervisor questioned the complainant about his requested
schedule revisions, did not state a claim). Appellant alleges that her
immediate supervisor, pursuant to a more senior supervisor's instruction,
told appellant to complete her route in eight (8) hours. There are no
allegations of additional harassing comments in the complaint, nor claims
of unwelcome touching in any manner. Accordingly, the Commission finds
that, accepting the appellant's allegations as true, the allegations are
not sufficient to indicate that the appellant may have been subjected
to harassment that was sufficiently severe or pervasive so as to alter
the conditions of employment. Accordingly, it is the decision of the
Commission to AFFIRM the agency's dismissal of appellant's complaint
for failure to state a claim.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Nov 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations